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Chapter II
Policy-making in India: Judiciary Vs Parliament
Public policy and policy-making in India
In any society, governmental entities enact laws, make policies, and allocate
resources. Public policy can be generally defined as a system of laws,
regulatory measures, courses of action, and funding priorities concerning a
given topic promulgated by a governmental entity or its representatives.
Individuals and groups often attempt to shape public policy through
education, advocacy, or mobilization of interest groups. Shaping public
policy is obviously different in different forms of government. But it is
reasonable to assume that the process always involves efforts by competing
interest groups to influence policy makers in their favour. In every political
system, executive has a predominant role in public policy formulation.
However, the other two organs of government, legislature and judiciary,
can also influence the policy-making depend upon the form of government
like parliamentary and presidential.
A major aspect of public policy is law. In a general sense, the law
includes specific legislation and more broadly defined provisions of
Constitutional or international law. There are many ways that the law can
influence the public policy of the government. Legislation identifies areas
and nature of governmental policies. Thus, it is not surprising that public
policy debates occur over proposed legislation. In a parliamentary form of
government, the role of legislature is increasing excessively in formulation
of public policy. The judicial interference in policy making is based on the
concept of judicial review.
Integrated judiciary is contradictory to the federal spirit of the
country.1 The judicial intervention in policy-making, especially a subject like
education included in Concurrent List, is creating more confusion and chaos
in policy implementation. Diversification of policies is a merit of federal
50
form of government, but the judicial intervention is a hindrance to it.
Supreme Court cases with regard self financing education is a best example
for this.
Separation of Powers and Judicial Review in India
A truly liberal constitutional document is one which grants power, but also
provides machinery for cutting down any arbitrary exercise of it. There are
three ways in which this happens in Indian Constitution. First, the
Constitution enumerates those things which the State cannot do and also
enumerates all those things it must do. Secondly, the Constitution being
federal, the power of the State is divided between the Union and the states.
Thirdly, there is separation of powers, which is divided the powers of the
state among the legislature, the executive and the judiciary by the
Constitution itself (Hidayatullah 1966: 64-66). In these several ways no
single body of men is entrusted with all the force possessed by the State.
Montesquieu was absolutely right when he said, “By division of powers,
government becomes the servant of the people and not the master.”
In India, unelected judges have effectively replaced the notion of the
separation of powers among three governmental branches with a Unitarian
claim of formal judicial supremacy. The concept of the rule of law is
supposed to legitimate this claim, but whether judicial supremacy – either
as such or as exercised by the Indian Supreme Court – actually upholds the
rule of law remains an open question.
In order to understand how this situation has come about, it is
helpful to know that in India, the power of judicial review is more or less
explicitly spelled out in the 1950 Constitution, and that this Constitution has
a dual goal. On the one hand, as a basic law in the liberal tradition, it seeks
to check the power of government and to safeguard individual rights and
liberties. On the other hand, it is the work of framers who believed, with
good cause, that their country needed a state with the capacity to intervene
massively in society in order to overcome structural injustices grave enough
to threaten liberal democracy itself (Mehta 2007: 110). So the Constitution
51
allows the courts to intervene in the cause of what might be loosely termed
‘social reform’. Moreover, judges have gradually widened the definition of
rights held to be constitutionally justiciable. Hence the scope of judicial
intervention can include everything from civil liberty to urban planning. This
constitutional practice, which licensed the courts to intervene, was bound
to generate a promiscuity that would be the cause of some resentment.
It is hard to say what are the necessary and sufficient conditions
under which independent judicial review will arise and take hold. It used to
be a common argument that successful constitutional judicial review is
caused and required by strong federalism. Federalism requires a ‘referee’ to
protect boundary arrangements, the logic ran, so each unit of a federation
will, despite incentives to deviate, support the creation and maintenance of
some central institution designed to identify and stop noncompliance by
others. The nature of the federal arrangement in India has turned on how
judicial power is exercised, and judicial review has often eroded rather than
strengthened federalism (Mehta 2007: 114). When it comes to define the
federal character of the Indian polity, legislature and executive have largely
followed the judiciary’s lead. This suggests that, as with a robust division of
powers among different levels of government, a strong separation of
powers among the various branches of government will encourage judicial
power and independence. The general presumption has been that in
parliamentary system, where the executive rises directly from the
legislature, judicial review will be weak (Mehta 2007: 114). Yet strong
judiciaries replete with doctrines of judicial review are appearing in such
parliamentary countries as Australia and Canada.
The actions of judges themselves, and not federalism or the
separation of powers, most cogently explain changes over time in the
exercise of judicial power. Court rulings are the main means for
institutionalising judicial review. In India as elsewhere, it is not simply the
formal allocation of powers but an evolving constitutional jurisprudence
that has enhanced the powers of judicial review. In democratic societies, it
52
seems that the degree of independence which a judiciary asserts is itself a
creation of judicial power (Mehta 2007: 115). The thought that ‘judicial
review causes itself’ is probably as good as any answer to the puzzle of
judicial power.
The history of judicial power and its exercise in India suggests that
the separation of powers doctrine is a highly misleading metaphor. It is still
invoked all the time, of course, but in reality it offers neither an accurate
empirical description of how actual courts work, nor a plausible conceptual
account of any government. Policy making has become a routine part of the
judicial role in many contexts, and adjudication likewise now belongs in
many countries and in many ways to the realm of administrative
functioning. The traditional distinction that holds legislatures to be forums
for the balancing of interests and courts to be forums of principle is far less
obvious than it seems. On the conceptual level, the plausibility of the
separation of powers metaphor breaks down as soon as one asks: “who
polices the boundaries between different branches of government?” each
branch will want to patrol the borders on its own terms, rendering any idea
of “separation” merely rhetorical. The Supreme Court of India has given to
pronouncements that all the branches of the government are “under the
Constitution,” suggesting that all legitimate power has its source in a legal
or constitutional order that somehow regulates the conduct of men (Mehta
2007: 115). In short, judiciary has become more powerful because Court is
not only the guardian of Constitution, but the separation of powers too. So
Court can decide the boundaries between different branches of
government, particularly between judiciary and other two branches.
Parliamentary Democracy in India
India has a hybrid system of government. The hybrid system combines two
classical models: the British traditions, drawn upon parliamentary
sovereignty and conventions, and American principles upholding the
supremacy of a written constitution, the separation of powers and judicial
review. The two models are contradictory since parliamentary sovereignty
53
and constitutional supremacy are incompatible. India has distinct imprints in
her constitution of both the British and American principles. In other words,
following the adoption of the 1950 Constitution, India has evolved a
completely different politico-constitutional arrangement with characteristics
from both the British and American constitutional practices. The peculiarity
lies in the fact that, despite being parliamentary, the Indian political
arrangement does not wholly correspond with the British system simply
because it has adopted the federal principles as well, it can never be
completely American since parliament in India continues to remain
sovereign. As a hybrid political system, India has contributed to a
completely different politico-constitutional arrangement, described as
parliamentary federalism, with no parallel in the history of the growth of a
constitution (Chakrabarty 2009: 86). Based on both parliamentary practices
and federal principles, the political system in India is therefore a conceptual
riddle underlining the hitherto unexplored dimensions of socio-political
history of nation-states imbibing the British traditions and American
principles.
The Constitution of India provides for the system of Parliamentary
democracy both at the Centre and in the States. This Parliamentary
Government is the most difficult system to work. It has succeeded in a very
few countries and the trend today definitely is towards a strong executive
which can control the turbulence and turmoil of political life and the
tremendous challenge of the modern world.
The most significant development in India’s constitutional history is
the consolidation of a parliamentary form of government that broadly
corresponds with the Westminster model. What is equally striking is the
growth of federalism in India in spite of parliamentary government that, in
its classical form, flourished within a unitary system of government.
Whereas Britain is identified as a classical model of parliamentary
government, the United States is always referred to as an ideal form of
federal government. The Constituent Assembly while deliberating on the
54
form of government for independent India was in favour of executive
federalism, which they presumed was appropriate for a stable political
authority. Owing to radical changes in India’s political texture in recent
times, parliamentary federalism has metamorphosed to a significant extent
and the growing importance of constituent state in governance at the
national level has created conditions for legislative federalism suggestive of
equal and meaningful representation of the units in federal decision-making
(Chakrabarty 2009: 84-85).
As a form of government, the democracy which is envisaged is a
representative democracy and the people of India are to exercise their
sovereignty through a parliament at the centre and Legislature in each
State, which is to be elected an adult franchise and to which the real
executive, namely the Council of Ministers, shall be responsible for the
popular House (Asaiah 1987: 36). The Parliament is the nerve centre of the
national activities. It is through Parliament that elected representative of
the people ventilate people’s grievances and opinions on various issues,
scrutinises the functioning of executive both on the floor of the House and
through special committees constituted for the purpose and enacts laws.
Judicial Review and Indian Constitution
American constitutional thought and the work of the U S Supreme Court
had a profound impact on the minds of the makers of the Indian
Constitution. They opted for the British parliamentary system but
consciously adopted the American model of a judicially enforceable Bill of
Rights and a federal system with the Supreme Court to keep the jurisdiction
of both the Union and the States within their respective spheres (Chatterjee
1998: 93). Nevertheless the ‘due process clause,’ one of the foundational
concepts of the U. S. constitutional system, was not incorporated in Indian
Constitution. To quote Alladi Krishnaswami Ayyar, “in the development of
the doctrine of due process the United States Supreme Court has not
adopted a consistent view at all and the decisions are conflicting. One
decision is very often reversed by another decision. It all depends upon the
55
particular judges that presided on the occasion.” (Constituent Assembly
Debates, vol. VII, 853-54). After a prolonged debate in the Constituent
Assembly it was unanimously decided to accept merely the procedural
aspect of due process in Indian constitutional system.2
In post-independence India, the inclusion of explicit provisions for
‘judicial review’ were necessary in order to give effect to the individual and
group rights guaranteed in the text of the Constitution. Dr. B.R. Ambedkar,
who chaired the drafting committee of our Constituent Assembly, had
described the provision related to the same as the ‘heart of the
Constitution’. Article 13(2) of the Constitution of India prescribes that the
Union or the States shall not make any law that takes away or abridges any
of the fundamental rights, and any law made in contravention of the
aforementioned mandate shall, to the extent of the contravention, be void.
While judicial review over administrative action has evolved on the
lines of common law doctrines such as ‘proportionality’, ‘legitimate
expectation’, ‘reasonableness’ and principles of natural justice, the
Supreme Court of India and the various High Courts were given the power
to rule on the constitutionality of legislative as well as administrative
actions. In most cases, the power of judicial review is exercised to protect
and enforce the fundamental rights guaranteed in Part III of the
Constitution (Balakrishnan 2009). The higher courts are also approached to
rule on questions of legislative competence, mostly in the context of
Centre-State relations since Article 246 of the Constitution read with the
7th schedule, contemplates a clear demarcation as well as a zone of
intersection between the law-making powers of the Union Parliament and
the various State Legislatures.
The warrant for judicial review comes from a combined reading of
Articles 13, 32 and 142 of the Constitution of India. Article 13(2) provides
that “The State shall not make any law which takes away or abridges the
rights conferred by this part and any law made in contravention of this
clause shall, to the extent of the contravention, be void (Govt. of India 2007:
56
5). Article 32 and 226 give any person the right to move the Supreme Court
or the High Court, respectively, for the enforcement of fundamental rights
guaranteed in Part III of the Constitution. Finally, Article 142 provides that
the Supreme Court “may pass such decree or make such order as is
necessary for doing complete justice in any cause or matter,” and such
decree or order is “enforceable throughout the territory of India.” (Govt. of
India 2007: 58). Article 142, especially the phrase “complete justice”, has
given the judiciary a virtual license to intervene in any matter whatsoever.
In addition to these textual enablers, the Court has over the years created
its own powers in a number of domains.
It is, however, admitted that Indian Supreme Court is the ultimate
interpreter and guardian of the Constitution. It can invalidate a law enacted
by the legislature in certain circumstances (Chatterjee 2005):
1) If the legislature (whether Parliament or State legislature) makes a
law by transgressing its jurisdiction.
2) If a law abridges the Fundamental Rights of the Citizens. The
Constitution of India by Article 13(2) enjoins the state not to make
any law which takes away or abridges the Fundamental Rights. Thus
the Supreme Court is the final authority to decide whether a law has
taken away and curtailed the Fundamental Rights and what would
be the limits on Fundamental Rights.
3) The Supreme Court is also the ultimate authority to decide whether
a law imposes unreasonable restriction on the enjoyment of the
Right to Freedom guaranteed under Article 19 of the Constitution.
4) Under Article 31(2) (now repealed) it was for the court to determine
if a property had been acquired or requisitioned for a ‘public
purpose’ or not.
Thus although we did not accept the ‘due process’ clause of the US
Constitution still there are a number of provisions in Indian Constitution
which, in fact, authorise the Supreme Court to examine the reasonableness
57
or justness of the substantive content of very vital legislations intended to
bring about socio-economic transformation of the country.
Judicial Review in India
Legislature, executive and judiciary under the Constitution are to exercise
powers with checks and balances, but not in water-tight rigid mould. In
India, by basis of Article 13 (2) the Supreme Court can exercise the power of
judicial review. Judicial review in India comprises of three aspects:
(1) Judicial review of legislative action,
(2) Judicial review of administrative action,
(3) Judicial review of judicial decisions.
The Constitution of India provides for judicial review under Article
13(2). The Supreme Court has pronounced that judicial review is a
fundamental feature of the Constitution. The power of judicial review by
courts therefore is not subject to amendment and thus has been effectively
taken out of the field of Parliament’s power to amend or in any way
abridge. The judiciary has declared a “hands-off” command to the
legislature.
Thus, judicial review is a highly complex and developing subject. It
has its roots long back and its scope and extent varies from case to case. It
is considered to be the basic feature of the Constitution. The court in its
exercise of its power of judicial review would zealously guard the human
rights, fundamental rights and the citizens’ rights of life and liberty as also
many non-statutory powers of governmental bodies as regards their control
over property and assets of various kinds, which could be expended on
building, hospitals, roads and the like, or overseas aid, or compensating
victims of crime.
The limits on the power of judicial review are a recurring theme in
the evolution of our Constitution. In some of its distinguished judgments,
the Supreme Court has defined the outline of sovereign power as
58
distributed amongst the three branches of Government namely, the
legislature, the executive and the judiciary.
In the initial years post independence, the Supreme Court tried to its
strike a balance between the much-needed programmes of economic and
social reform (for example, land reform and land redistribution) on the one
hand and establishing the credibility of the newly-born Indian State. It tried
to promote the rule of law and respect the rights vested under laws that
preceded independence and the very Constitution itself. (AIR 1951 SC 458).3
During the first couple of decades when, for all practical purposes,
India was functioning as a de facto one-party political system. The Supreme
Court focused on promoting the values of constitutionalism, separation of
powers and checks and balances over and in each organ of the State. The
Supreme Court and the High Courts were ever-vigilant in their review of
executive actions, hence ensuring to the public requisite protection against
excesses of authority or abuses of power (AIR 1964 SC 962). They were
equally vigilant in their review of legislative actions, both in respect of
lawmaking as well as in balancing legitimate parliamentary powers,
(necessary for the effective functioning of Parliament) with parliamentary
privileges, notably that of punishing for contempt (AIR 1965 AII 349).
In the decades thereafter, the Supreme Court turned its attention
towards the frequency with which the Parliament was amending the
Constitution using the dominance of a single political party at both the
national and state levels to the maximum. The Court elaborated upon the
distinction between the constituent and legislative power (AIR 1967 SC
1643). Moreover, as the judiciary and the Indian political system matured,
the Supreme Court firmly established the primacy of the Constitution
through its articulation of the basic structure doctrine, thereby safeguarding
those features that are inherent in the Constitution from being altered
through the mere exercise of legislative power (AIR 1973 SC 1461).
59
Judicial Review and Federalism in India
The traditional principle of federalism is to create an independent judiciary
to preserve intact the federal structure, because federalism involves a
division of powers between the central government and the provincial
governments and there may be occasional conflicts between the two or the
provinces inter se as regards the terms of the division of powers and the
respective areas of their authority. All such disputes are to be settled with
reference to the Constitution which is the supreme law of the land and
which prescribes the manner in which powers are distributed between the
centre and the units. Justice demands that such conflicts should be settled
by an impartial arbiter. A Supreme Court under a federal constitution is
such an arbiter and is, therefore, an integral part of a federal system. It is
the highest interpreter of the Constitution and acts as the guardian of the
Constitution.
The Rise of Judicial Sovereignty
The Indian Supreme Court’s chief duty is to interpret and enforce the
Constitution of 1950. It contains, at latest count, 450 articles and 12
schedules. Since its original adoption, it has been amended more than a
hundred times. It is fair to say that the Supreme Court, operating under the
aegis of this book-sized liberal constitution, has by and large played a
significant and even pivotal role in sustaining India’s liberal democratic
institutions and upholding the rule of law. The Court’s justices, who by law
now number 26, have over the years carved out an independent role for the
Court in the matter of judicial appointments and transfers, upheld extensive
judicial review of executive actions, and even declared several
constitutional amendments unconstitutional. The Court upon which they sit
is one of the world’s most powerful judicial bodies with implications for
democracy that are both positive and problematic (Mehta 2007: 107).
The Court has a relatively weak record when it comes to questioning
executive action in cases of preventive detention. While the Court has
generally upheld the right to free expression, it has given the state more
60
leeway in banning books that officials fear may threaten public order.
During the period of emergency rule declared at the instigation of Prime
Minister Indira Gandhi from June 1975 to March 1977, the Supreme Court
shrank from its duty and chose supinely to concur with the executive’s
suspension of the writ of Habeas Corpus (Mehta 2007: 108).
Besides protecting the basic liberties that put the “liberal” in India’s
liberal democracy, the Court has helped to ensure the polity’s democratic
character by safeguarding the integrity of the electoral process. The Court
has acted to curb the central government’s tendency to misuse Article 356
as a pretext to sack elected state governments and install president’s rule
instead. Supreme Court interventions have also promoted democratic
transparency by making political candidates meet fuller norms of disclosure.
The Supreme Court’s record in promoting decentralised governance is
mixed. On the one hand, the Court has ensured the integrity of Indian
federalism by pronouncing that the central government cannot dismiss a
state government without a high threshold of public justification. On the
other hand, courts across the country have been less receptive to the claims
of lower tiers of government against state governments. The Supreme
Court has so far proven unable to clarify the law in this area. While the
social and economic rights that the Constitution lists were not at first
deemed justiciable, the Supreme Court has managed over the years to
apply a more substantive conception of equality that justices have used to
uphold rights to health, education and shelter, among others. To one
degree or another, the executive branch has responded by at least trying to
make provisions for the guarantee of these rights.
The Court’s greatest judicial innovation – and the most important
vehicle for the expansion of its power – has been its institution of Public
interest litigation (PIL). In PIL cases, the Court relaxes the normal legal
requirements of standing and pleading, which require that litigation be
pressed by a directly affected party or parties, and instead allows anyone to
approach it seeking correction of an alleged evil or injustice. Moreover, in
61
PIL matters the Court has expanded its own powers to the point that it
sometimes takes control over the operations of executive agencies.
Parliamentary Sovereignty vs. Judicial Review
Disputes between the judiciary and the other two branches have been
Common in Indian political life. The basic question in the conflict between
Parliament and Judiciary is “Do we have the Rule of Laws or the Rule of
Men?” (Mehta 2007).
During the first 17 years of the Supreme Court’s existence, when it
was supposedly in its restrained period, it struck down 128 pieces of
legislation. Of the first 45 constitutional amendments, about half were
aimed at curbing judicial power. The 104th
constitutional amendment is
designed to reverse the result of the Inamdar Case, in which the Court ruled
unconstitutional the central government’s effort to control who is admitted
to half of all the seats in private institutions of higher education every year
and to set the fees that these schools could charge (Mehta 2007: 111).
If the frequency of amendments meant to reverse Supreme Court
decisions is significant, so is the legislative assumption that amendments
are needed at all. Court decisions may infuriate Parliament, in other words,
but Parliament thinks that they cannot simply be ignored. Even during the
1975-77 emergency, the government took care to curtail the authority of
the courts by formally legal means. This deference has ensured that even
constitutional amendments have not been able to alter the basic structure
of the Constitution and the formal allocation of powers within it.
The foregoing suggests that there is profound inner conflict at the
heart of Indian constitutionalism. The Court has declared itself to be the
ultimate judge, the final arbiter, and has even assumed the power to
override duly enacted constitutional arrangements. Yet in a polity where
parts of the Constitution can be amended by as little as a majority vote of
each of the two houses of Parliament, there is no reason to suppose that a
court decision regarding the constitutionality of a particular matter will
62
suffice to remove it from the political agenda. In India, Parliament and the
judiciary have been and are likely to remain competitors when it comes to
interpreting the Constitution. It is by no means settled who has the final
word. The decisions of each are episodes in an iterative game of action-
response-rejoinder that can be played out any number of times (Mehta
2007: 112). Parliament can pass a law, the courts can strike it down,
Parliament can try to circumvent the courts by amending the Constitution,
the courts can pronounce that Parliament’s amendment power does not
apply to the case, and so on.
It is true that the 1990s saw no full scale parliamentary assault on
the courts’ interpretation of what the “basic structure” doctrine requires,
but that was an accidental side effect of a fragmented political system in
which no one party could achieve dominance in Parliament. Should any
party gain enough parliamentary majority to wield the amendment power,
the judicial-legislative tussle will almost certainly resume, and it is
impossible to predict what the outcome will be, either in the nearer or the
longer term (Baxi 2001).
The judicialisation of politics and the politicisation of the judiciary
turn out to be two sides of the same coin. The legitimacy and power that
India’s judiciary does enjoy most likely flow not from clear and consistent
constitutional vision, but rather from its opposite. The Supreme Court in
particular has given enough players enough partial victories to leave them
feeling as if they have a stake in keeping the game of political give and take
going (Baxi 2001).
In the early post-independence years, the Supreme Court tried to
block land-reform legislation, virtually denied that the Constitution requires
substantive due process, and gave serious scrutiny to government
regulation of publications. The government’s response was typically to seek
a change in the letter of the Constitution, which helps to explain why India’s
basic law is so heavily amended. During the late 1960s and early 1970s, the
judiciary struck down major planks of Indira Gandhi’s development agenda,
63
including her scheme for nationalising the banks (Mehta 2007: 110). This
era also saw the Court make its first strong claim that Parliament may not,
even via amendment, override the fundamental rights elaborated in part III
of the Constitution. Later, the Court would extend and revise this claim to
argue that the legislature may not, through amendment, override the “basic
structure” of the Constitution. Yet when Prime Minister Gandhi declared
her State of Emergency on 25th
of June 1975, suspended Article 21 of the
Constitution and had hundreds of people detained by executive order, the
Supreme Court overruled 9 High Courts and upheld her actions (Baxi 2001).
Despite the Court continued to emerge stronger over judicial
appointments. Judges then framed far-reaching interpretations that would
lay a constitutional basis for future judicial bids to curb the powers of the
two other branches. The Supreme Court managed to legitimise itself not
only as the forum of last resort for questions of governmental
accountability, but also as an institution of governance. The Court’s Public
Interest Litigation initiatives allowed judges to make policy and demand
that executive officials carry it out (Mehta 2007: 110).
The Constitution’s Article 124 is ambiguous on judicial
appointments, calling for consultation between the executive and the
judiciary but leaving it unclear who has the final say. In a decision in The
Third Judges’ Case (1993), the Supreme Court held that the power to name
new judges to the highest bench rests primarily with the chief justice and
the next four most senior justices of the Supreme Court itself. Extensive
consultations with the executive are required, but in the end the Court’s
highest ranking jurists have the lion’s share of the appointment power
(Mehta 2007: 111). Thus the Court may have secured its autonomy at a cost
to its transparency and perhaps its legitimacy as well.
It appears that Parliament and the Supreme Court largely differed in
their respective approaches to significant issues having bearing on socio-
economic transformation of society. A background study of several
constitutional amendments reveals that these amendments were
64
necessitated by the urgency to counteract the effect of the decisions of the
Supreme Court in a number of cases wherein the Court struck down
progressive legislations, including land reforms ones, enacted by the State
legislatures, which were considered so essential for bringing about radical
changes in our agrarian system and thereby reducing disparity in income
and wealth, the Supreme Court itself changed its own decisions within a
brief span of time on the same issue (Chatterjee 1998: 97). It is within the
province of the Supreme Court to reverse its earlier decisions. But frequent
shift in stand on the part of the apex court of the country leads to
uncertainty, making it difficult for Parliament and the executive to follow a
well-planned long-term policy.
From a perusal of the working of Supreme Court since
independence, two major conclusions having bearing upon the legislature
may be drawn up. Firstly, the Supreme Court has almost consistently taken
up positions contrary to those held by Parliament and has nullified many
progressive legislations intended to bring about a socialistic transformation
of Indian society in a peaceful way. Secondly, the Court has put the whole
state of the law and, in particular, constitutional law into a state of
uncertainty by reversing continuously its own decisions. When Parliament
proceeded to legislate or the executive branch of government sought to
pass an executive order on the basis of existing decisions of the Court, the
latter set aside the law or the government order by reversing its own
previous decisions. This led to a total uncertainty about the state of law. In
fact, the judiciary sat over the verdict of Parliament on issues relating to
social and economic justice, and this led to conflict, real or apparent,
between the judiciary and Parliament. The slugfest between Parliament and
Judiciary has, in fact, turned into a tussle between Civil and Political Rights
(FR) on the one hand and the Economic and Social Rights (DPSP) on the
other hand, the Court support the former one.
65
Shankari Prasad Singh Vs. Union of India (1951)
In the case of Shankari Prasad, the question was raised whether the 1st
Amendment Act, 1951 seeking to abridge the right to property was
constitutionally void or not. The petitioner’s argument against the validity
of the Act was that Article 13(2) prohibited enactment of any law
abrogating a fundamental right. The court, however, rejected this argument
saying that the word ‘law’ referred in Article 13 did include only ‘legislative
law’, that is the law made by the legislature ordinarily, not the ‘constituent
law’ i.e. a law made to amend the constitution.
The Court adopted a similar view in 1964 in Sajjan Singh Vs. State of
Rajasthan when it upheld the 17th
amendment Act. But this is also to be
remembered that on this question the judges were not unanimous. For
example, Justice Hidayatullah observed, “I would require stronger reasons
than those given in Shankari Prasad’s case to make me accept the view that
fundamental rights were not really fundamental but were intended to be
within the powers of the amendment in common with the other parts of
the constitution and without the concurrence of the states’ because the
constitution gives so many assurances in Part III that it would be difficult to
think that they were play things of a special majority.” (Jain 2000). This
argument of Justice Hidayatullah became the basis of the judgment of the
Golaknath case in 1967.
Sajjan Sing Vs State of Rajasthan
The validity of the Seventeenth Amendment was challenged in this case.
The main contention before the five-judge bench of the Supreme Court was
that the Seventeenth Amendment limited the jurisdiction of the High Courts
and, therefore, required ratification by one-half of the States under the
provisions of article 368. The court unanimously disposed of this
contention, but members of the court chose to deal with a second
submission, that the decision in the Shankari Prasad case should be
reconsidered. The Chief Justice (Gajendragadkar C.J.) in delivering the view
of the majority (Gajendragadkar C.J., Wanchoo and Raghubar Dayal JJ.)
66
expressed their full concurrence with the decision in the earlier case. The
words "amendment of this constitution" in article 368 plainly and
unambiguously meant amendment of all the provisions of the Constitution;
it would, therefore, be unreasonable to hold that the word "law" in article
13(2) took in Constitution Amendment Acts passed under article 368.
Golaknath Vs. State of Punjab (1967)
A highly confusing stand of the Supreme Court was apparent in a very
sensitive field of constitutional structure, which is the limitation upon the
power of Parliament to amend the Constitution. In Golaknath Case the
Supreme Court held by a majority of 6 to 5 that Parliament had no power to
amend any of the provisions of Part III of the Constitution so as to take
away or abridge any of the Fundamental Rights enshrined therein (AIR 1967
SC 1643). The Supreme Court held that in the context of Article 13 of the
constitution the law includes the amendments of the constitution with the
result that Article 13(2) affects the amendment made under the Article 368.
In other words, the court declared that even the constitutional
amendments if they affect the fundamental rights were liable to be held
void. The stand of the Supreme Court was clear that every provision of the
Constitution could be amended freely as desired by Parliament, excepting
the provisions relating to Fundamental Rights. The effect of this majority
judgement was to overrule its unanimous judgement in Shankari Prasad’s
case (1951) as well as its majority judgement in Sajjan Singh’s case (1964).
In these two cases the Supreme Court held that the terms of Article 368
were perfectly general and empowered Parliament to amend the
Constitution without any exception whatever.
24th
Constitutional Amendment in 1971
To counteract the effect of the decision of the Supreme Court in the
Golaknath case and to restore the power to amend any provision of the
Constitution, including the provisions of Part III, to Parliament, the
Constitution was amended in 1971. It was provided by the said Amendment
that parliament could in exercise of its constituent power amend by way of
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addition, variation or repeal any provision of the Constitution in accordance
with the procedure laid down in Article 368. The 24th
and 25th
amendments
restored the parliament’s right to amend the fundamental rights.
To get over the decision of the Supreme Court in Golaknath case the
24th Constitution Amendment Act was passed in 1971. The 24th
Amendment made changes to Articles 13 and 368:
(i) A new clause was added to article 13: "(4) Nothing in this article shall
apply to any amendment of this Constitution made under article 368."
(ii) Amendments were made to article 368:
a) The article was given a new marginal heading: "Power of Parliament to
amend the Constitution and procedure therefore."
b) A new clause was added as clause (I): "(I) Notwithstanding anything in
this Constitution, Parliament may in exercise of its constituent power
amend by way of addition, variation or repeal any provision of this
Constitution in accordance with the procedure laid down in this
article.
c) Another clause was added as clause (3): "(3) Nothing in article 13 shall
apply to any amendment under this article."
Another amendment to the old article 368 (now article 368(2)) made it
obligatory rather than discretionary for the President to give his assent to
any Bill duly passed under the Article.
Keshavananda Bharati Vs. State of Kerala (1973)
The constitutional validity of the 24th
amendment, along with the 25th
and
29th
Amendments, was challenged before the Supreme Court in
Keshavananda Bharati case in 1973. The Supreme Court reversed its earlier
ruling in Golaknath’s case and upheld the validity of 24th
Amendment,
Parliament’s power to amend the Constitution. But in the same case the
Court formulated the doctrine of ‘basic features or structure of the
Constitution’. Previously these were unknown concepts in Indian political
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system. It was a judicially innovative doctrine and the Supreme Court did not
define the ‘basic structure’4. The court held that the parliament’s power of
amending the constitution was always subject to implied limitations. The
phrase ‘basic structure’ remained delightfully vague and has become subject
to judicial interpretation. Obviously the verdict of this case significantly
increased the court’s authority of judicial review (Ghosh 2005: 126).
A total uncertainty prevailed about the ambit of parliament’s power
to amend the Constitution after the ruling of the Supreme Court in
Keshavananda Bharati case. The prevailing situation is worse than the one
created by the judgement in the Golaknath case in which the stand of the
Supreme Court was clear in one respect at least. But the judgement in the
Keshavananda Bharati case provided a vague and a subjective concept of
the basic structure of the Constitution which appears to include the
Fundamental Rights and which may also include anything else which the
Judges feel that it should include. Thus the certainty of the Constitution in
respect of the most vital power of amendment is thrown to the winds
(Chatterjee 1973).
42nd
Constitutional Amendment Act in 1976
After the decision of the Supreme Court in Keshvanand Bharti case, the
42nd Constitution Amendment Act was passed in 1976. It added two new
clauses, namely, clause (4) and (5) to Art.368 of the Constitution. It declared
that there shall be no limitation whatever on the constituent power of
parliament to amend by way of addition, variation or repeal of the
provisions of the Constitution under this Article. This Amendment would
put an end to any controversy as to which is supreme, Parliament or the
Supreme Court. Clause (4) asserted the supremacy of the parliament. It was
urged that Parliament represents the will of the people and if people desire
to amend the Constitution through Parliament there can be no limitation
whatever on the exercise of this power. This amendment removed the
limitation imposed on the amending power of the Parliament by the ruling
of the Supreme Court in Keshvanand Bharti case. It was said that the theory
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of ‘basic structure’ as invented by the Supreme Court is vague and will
create difficulties. The amendment was intended to rectify this situation.
The 42nd
Amendment Act curtailed drastically the jurisdiction of the court,
placed an act of constitutional amendment beyond the scope of judicial
scrutiny and more particularly the Act tried to minimise the ‘basic structure’
doctrine. The Act also significantly enlarged the powers of the executive.
Minerva Mills Vs. Union of India (1980)
In Minerva Mills vs. Union of India, it was observed by the Supreme Court
that the clauses of art. 31-C as introduced by the Constitution (42nd
Amendment) Act, 1976, which required to take away the power of judicial
review were unconstitutional. However, judicial review was not held to be
part of the basic structure of the Constitution by the majority in this
decision, although Bhagwati J in his minority decision traced the power of
judicial review to Arts. 32 and 226 and observed it to be a part of the basic
structure of the Constitution, and if taken away by a constitutional
amendment would amount to ‘subversion of the Constitution’.
In this case the validity of 42nd amendment Act was challenged on
the ground that they are destructive of the ‘basic structure’ of the
Constitution. The Supreme Court by majority of 4 to 1 struck down clauses (4)
and (5) of the Article 368 inserted by 42nd Amendment, on the ground that
these clauses destroyed the essential feature of the basic structure of the
constitution. It was ruled by court that a limited amending power itself is a
basic feature of the Constitution. The historical Judgement laid down that:
“The amendment made to Art.31C by the 42nd Amendment is
invalid because it damaged the essential features of the Constitution.
Clauses (4) and (5) are invalid on the ground that they violate two basic
features of the Constitution viz. limited nature of the power to amend and
judicial review. The courts cannot be deprived of their power of judicial
review. The procedure prescribed by Cl.(2) is mandatory. If the amendment
is passed without complying with the procedure it would be invalid. The
Judgement of the Supreme Court thus makes it clear that the Constitution is
70
Supreme not the Parliament. Parliament cannot have unlimited amending
power so as to damage or destroy the Constitution to which it owes its
existence and also derives its power.”
Waman Rao vs. Union of India (AIR 1981, Supreme Court, 271)
The decision of Waman Rao Vs Union of India is regarded as one of the
landmark judgement in the constitutional jurisprudence of India. This case
in a way a unique one as it re-clarifies various doubts arose out of
Keshavananda Bharati case. In this case the main challenge was the
constitutional validity of Articles 31A, 31B and un-amended article 31C. It
was strongly argued against the protective nature of these articles which
exclude all possibilities of challenge to the laws included under the shield.
They argued that such shield will violate certain Fundamental Rights
enshrined under Part III of the Constitution. The appellants replied that the
very provisions of the Constitution which the respondents rely to save
impugned laws are invalid as the later amendments infringe the basic
essential structure of the Constitution as propounded in Keshavananda
Bharati Case.
The Ninth Schedule was added to the Constitution after the first
amendment to the constitution. Here the Court proposed to treat decision
of Keshavananda Bharati as the benchmark. Several Acts were put in the
Ninth Schedule prior to that decision on the supposition that the power of
the Parliament to amend the Constitution was wide and untrammelled.
Therefore the Court would not be justified in upsetting the settled claims by
leaving those Acts open to challenge.
The Court said that as far as the validity of the Ninth Schedule is
concerned, the Acts and regulations included in the Ninth Schedule prior to
the date of Keshavananda Bharati, will receive the full protection of this
Article. Those laws and regulations will not be open to challenge on the
ground that they are inconsistent with any of the provisions of part III of the
Constitution. But the Acts and regulations which have been included after
the date of Keshavananda Bharati judgment would be open to scrutiny and
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would not automatically receive the blanket protection of the Ninth
Schedule. Therefore the Acts and regulations added after the said date can
only find themselves placed in the Ninth Schedule if they can satisfy that
they do not harm the basic structure of the Constitution.
Public Interest Litigation and the Scope of Judicial Review in India
In Public Interest Litigation (PIL), the nature of proceedings itself does not
exactly fit into the accepted common-law framework of adversarial
litigation. The courtroom dynamics are substantially different from ordinary
civil or criminal appeals. While an adversarial environment may prevail in
cases where actions are brought to highlight administrative apathy or the
government’s condonation of abusive practices, in most public interest
related litigation, the judges take on a far more active role in the literal
sense as well by posing questions to the parties as well as exploring
solutions (Balakrishnan 2009). Especially in actions seeking directions for
ensuring governmental accountability or environmental protection, the
orientation of the proceedings is usually more akin to collective problem-
solving rather than an acrimonious contest between the counsels. Since
these matters are filed straightaway at the level of the Supreme Court or
the High Court, the parties do not have a meaningful opportunity to present
evidence on record before the start of the court proceeding. To overcome
this problem, Courts have developed the practice of appointing ‘fact-finding
commissions’ on a case by-case basis which are deputed to inquire into the
subject-matter of the case and report back to the Court. These commissions
usually consist of experts in the concerned fields or practicing lawyers. In
matters involving complex legal considerations, the Courts also seek the
services of senior counsels by appointing them as amicus curiae on a case-
by-case basis (Desai & Muralidhar 2000). The Public Interest Litigation has
considerably strengthened the power of Judiciary.
Issues and Debates on Judicial Review in India
Indian Supreme Court’s undeniable contributions to democracy and the rule
of law, to say nothing of its reaching for power in service of these aims, are
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shadowed by three profound ironies. First, even as the nation’s most senior
judicial panel engages in high profile PIL interventions, routine access to
justice remains extremely difficult. India’s federal judicial system has a
backlog of almost 20 million cases, thousands of prisoners are awaiting trial,
and the average time it takes to get a judgement has been steadily
increasing (Mehta 2007: 109). There is a saying in India that you do not get
punishment after due process – due process is the punishment.
The second irony is that even as the Supreme Court has established
itself as a forum for resolving public-policy problems, the principles
informing its actions have become less clear. To the extent that the rule of
law means making available a forum for appeals, one can argue that the
Court has done a decent job. To the extent that the rule of law means
articulating a coherent public philosophy that produces predictable results,
the Court’s interventions look less impressive.
The third irony is that the Court has helped itself to so much power
– usurping executive functions, marginalising the representative process –
without explaining from whence its own authority is supposed to come
(Mehta 2007: 109). In theory, democracy and constitutionalism can
reinforce each other, but in practice their relationship is complex and even
problematic. The question of where one begins and the other ends has
taken on global significance in light of the widely observed trend toward
“post democracy”, according to which representative institutions are losing
power to nonelected centres of decision making the world over.
The supremacy of the Constitution itself is and should be amenable
to the sovereign will of the people which is and ought to be capable of
constitutional expression, not once but as often as the exercise of this
power becomes a national necessity. There should be no scope of judicial
review of constitutional amendments on any ground except that or those
expressly stated in Article 368. The constitutional amendment is the
outcome of a political decision. It is for Parliament to decide whether an
amendment is necessary or not. The judiciary should not in any way be
73
concerned with the wisdom of the amendment (Chatterjee 1998: 99). The
possibility that the power of amendment may be abused in future furnishes
no ground for denial of its existence or putting implied limitations on it,
judicially discovered. Consequences of misuse of amending power are
political in character with which the judiciary is not concerned.
From ‘Judicial Conservatism’ to ‘Judicial Activism’
The policy formulation is the sole prerogative of the legislative-
executive departments of the government. The judiciary just keeps vigil
whether the parliamentary enactments and the executive actions are in
accordance with the laws of the constitution. This reveals that neither the
parliament and the cabinet nor the court can claim independently to be
truly sovereign. The parliamentary form of government in India is thus a
compromise of powers of different organs of the government. Indian
constitutional system adopts the via media between the American System
of judicial supremacy and the English principle of parliamentary supremacy
(Ghosh 2005: 124). However, the court’s hold receptiveness to the social
reforms initiated by Parliament made it subject to criticism by the Indian
National Congress, the left radical political parties like CPI and CPIM etc
about the very role of the Indian judiciary (Ghosh 2005: 125-26). The
verdicts of the Supreme Court in the Golaknath case, in the bank
Nationalisation case and in the Privy Purse case raised a huge political
uproar. It was argued further that the social philosophy of the judges
reflected in their verdicts was highly conservative.
However, the emergency period made the judiciary ‘deaf and dump’
due to its absence of positive interference during this period. But post 1977
scenario witnessed proactive role with judiciary supporting DPSP, PIL, SIL
etc. The weakness of the political process provides fertile soil for judicial
activism, and judges keen to compensate for their failure to defend
democratic principles during the 1975-77 emergency have avidly taken up
the task of preserving the republic. In many instance, the executive has
almost invited the judiciary to play a leading role (Mehta 2007: 116). In
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decision after decision, be it the authority to review constitutional
amendments or the mode of appointing judges, the Supreme Court has
created its own powers.
Judicial activism can mean many things: scrutiny of legislation to
determine constitutionality, the creation of law, and the exercise of policy
prerogatives normally reserved for the executive. But whatever its form,
judicial activism raises two questions: Is it legitimate? And is it effective?
The democrat in all of us is rightly suspicious when a few people assume
such broad powers over our destiny without much accountability. At least,
we ruminate, we can throw the politicians out once in a while, but judges
are mostly shielded from accountability. And it must be unenviable task for
judges to steer a middle course between usurping too much power on the
one hand, and doing too little to sustain the fundamental values of
constitutional democracy on the other (Mehta 2007: 116-17). Judicial
activism is justified to the extent that it helps to preserve democratic
institutions and values. Court interventions could be judged successful if
they were fostering a constitutional culture wherein certain fundamental
values and aspirations become authoritative constraints on the behaviour
of governments and citizens alike.
The eminent Indian legal scholar Upendra Baxi called judicial
activism a dire cure for a drastic disorder: “chemotherapy for a carcinogenic
body politic” (Baxi 2001: 3). And certainly judges have an important role to
play in strengthening Indian democracy. But they will have to exercise great
discretion and resist the intoxication which comes from the view that
judges are the last, best hope of the republic. Learned Hand, an eminent U.
S. jurist, observed, “Liberty lies in the hearts of men and women; when it
dies there, no constitution, no law, no court can even do much to help it.”
(Hand 1960: 190).
The so called judicial activism cannot be a substitute for executive
inactivism. Leaving aside the controversy whether the judiciary is
encroaching upon the domain of the executive, the point is that the court
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cannot take over the function of the executive. The former lacks the
required expertise to do so and has not been assigned such role by the
Constitution. The judiciary has to see whether any action or administrative
order of the executive is in conflict with the statute enacted by the
legislature or any provision of the Constitution. It is none of the business of
the court to implement the law or to compel the executive to do the same
as judiciary has been doing (Chatterjee 1998: 103). There is difference
between implementing a law and executing an order. The court interprets
the law and applies it to a given case and passes an appropriate order in
accordance with the law. The court has also an obligation to ensure
implementation of the order or decree. But that must be done in
accordance with the prescribed methods. If the courts go on issuing
directions to the executive in each and every matter, under pressure of
endless flow of public interest litigations, this may inevitably result in an
unfortunate collision between the judiciary and the executive. The judiciary-
executive conflict, like the judiciary-legislature tussle is not a desirable
phenomenon for the smooth functioning of a constitutional government.
In the words of Justice J S Verma (former Chief Justice of India):
“…the judiciary should only compel performance of duty by the
designated authority in case of its inaction or failure, while a
takeover by the judiciary of the function allocated to another
branch is inappropriate. Judicial activism is appropriate when it
is in the domain of legitimate judicial review. It should neither be
judicial ‘adhocism’ nor judicial tyranny.”
The acknowledgement of this difference between “judicial activism” and
“judicial overreach” is vital for the smooth functioning of a constitutional
democracy with the separation of powers as its central characteristic and
supremacy of the constitution as the foundation of its edifice.
Justice Dr A S Anand, former Chief Justice of India and former
Chairperson of the Human Rights Commission of India, while addressing on
“Judicial review – judicial activism – need for caution” said:
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“The legislature, the executive and the judiciary are three
coordinate organs of the state. All the three are bound by the
Constitution. The ministers representing the executive, the
elected candidates as Members of Parliament representing the
legislature and the judges of the Supreme Court and the High
Courts representing the judiciary have all to take oaths
prescribed by the Third Schedule of the Constitution. All of them
swear to bear true faith and allegiance to the Constitution.
When it is said, therefore, that the judiciary is the guardian of
the Constitution, it is not implied that the legislature and the
executive are not equally to guard the Constitution. For the
progress of the nation, however, it is imperative that all the
three wings of the state function in complete harmony.
“A judicial decision either ‘stigmatises or legitimises’ a decision
of the legislature or of the executive. In either case the court
neither approves nor condemns any legislative policy, nor is it
concerned with its wisdom or expediency. Its concern is merely
to determine whether the legislation is in conformity with or
contrary of the provision of the Constitution It often includes
consideration of the rationality of the statute. Similarly, where
the court strikes down an executive order, it does so not in a
spirit of confrontation or to assert its superiority but in discharge
of its constitutional duties and the majesty of the law. In all
those cases, the court discharges its duty as a judicial sentinel.”
The adoption of such an all powerful attitude by the judiciary does not
augur well for a healthy democracy. This is underscored by the fact that
judiciary as an institution is not accountable to the people in the same way
as the legislature and the executive. The actions of the executive are subject
to judicial review when there is social, economic or political injustice – or
departure from the provisions of law and the constitution. When the
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legislature makes laws beyond constitutional bounds or acts arbitrarily
contrary to its basic structure, the highest court examines and corrects.
When the judiciary is guilty of excesses, only a larger Bench or a
constitutional amendment can intervene. Even today, the only mode of
removal of judges as prescribed in the constitution is impeachment, which
is too Herculean a task to be easily undertaken. This lack of accountability
requires the judiciary to watch its step and exercise self-restraint.
The use of the power of contempt by the higher courts has often
been uncalled for and unregulated. There are more instances of abuse of
the contempt power than its use. Veteran journalist Kuldip Nayar states
that “the unpalatable truth is that the judiciary, for some years, has been
struck with its own image of authority and truth.” The governance of our
Republic, in the totality of administration, is vested in the trinity of
executive, legislature, and the judiciary. In a democratic Republic like India
the constitution is supreme, and the rule of law requires that every organ of
the state, adhere to constitutional policy.
1 As a federal polity, India has two sets of government. Powers and responsibilities are
divided between these two levels. The Constitution of India divides powers between
the Union and the State governments. The Seventh Schedule of the Constitution
includes three lists of subjects - the Union List, the State List and the Concurrent List.
The Central or Union Government has exclusive power to make laws on the subjects
which are mentioned in the Union List. The States have the power to make law on the
subjects which are included in the Concurrent List. With regard to the Concurrent List,
both the Central and State governments can make laws on the subjects mentioned in
the Concurrent List. Finally, the subjects which are not mentioned in the above three
lists are called residuary powers and the Union government can make laws on them.
Education is a subject included in Concurrent List since 1976. It may be noted here that
in making laws on the subjects of the Concurrent list, the Central government has
more authority than the State governments.
2 Due Process is the legal requirement that the state must respect all of the legal rights
that are owed to a person and laws that states enact must confirm to the laws of the
land like - fairness, fundamental rights, liberty etc. It also gives the judiciary to access
the fundamental fairness, justice, and liberty of any legislation. Procedure established
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by law means that a law that is duly enacted by legislature or the concerned body is
valid if it has followed the correct procedure. Say a law enacted by Indian legislature.
Article 21 of Indian Constitution says that- 'No person shall be deprived of his life or
personal liberty except according to procedure established by law'. There is no
mention of the word 'Due Process' in Indian Constitution. A strict literal interpretation
of Procedure established by Law give the legislative authority an upper hand and they
may enact laws which may not be fair from a liberal perspective.
The difference between "due process of law" and "procedure established by law" is
that under the American system, a law must satisfy the criteria of a liberal democracy.
In India "procedure established by law", on the other hand, means a law duly enacted
is valid even if it is contrary to principles of justice and equity. However, in India a
liberal interpretation is made by judiciary after 1978 and it has tried to make the term
'Procedure established by law' as synonymous with 'Due process' when it comes to
protect individual rights. In Maneka Gandhi vs Union of India case (1978), Supreme
Court held that, 'Procedure established by law' within the meaning of Article 21 must
be 'right and just and fair' and 'not arbitrary, fanciful or oppressive' otherwise, it would
be no procedure at all and the requirement of Article 21 would not be satisfied. Thus,
the 'procedure established by law' has acquired the same significance in India as the
'due process of law' clause in America. See Bernstein (2011), Breyer (2005) and Sharma
(2007).
3 See, e.g., Shankari Prasad Singh Deo v. Union of India, AIR 1951 SC 458 (upholding the
validity of the first amendment to the Constitution that shielded land acquisition laws
from legal challenge under Part III of the Constitution.) However, in later judgments
starting with State of West Bengal v. Bella Banerjee, AIR 1954 SC 170 the Court ruled
that the meaning of ‘compensation’ in Art. 31(2) meant just equivalent for the
property acquired, making meaningful land reform impossible. This in turn led to
Parliament’s adoption of the undesirable practice of shielding laws from constitutional
challenge by placing them in the Ninth Schedule added to the Constitution by
Parliament through a constitutional amendment.
4 The Supreme Court recognized ‘Basic Structure’ concept for the first time in the
Kesavananda Bharati case in 1973. Ever since the Supreme Court has been the
interpreter of the Constitution and the arbiter of all amendments made by parliament.
In this case validity of the 25th Amendment Act was challenged along with the Twenty-
fourth and Twenty-ninth Amendments. The court by majority overruled the Golak
Nath case which denied parliament the power to amend fundamental rights of the
citizens. The majority held that article 368 even before the 24th Amendment
contained the power as well as the procedure of amendment. The Supreme Court
declared that Article 368 did not enable Parliament to alter the basic structure or
framework of the Constitution and parliament could not use its amending powers
under Article368 to 'damage', 'weaken', 'destroy', 'abrogate', 'change' or 'alter' the
'basic structure' or framework of the constitution. This decision is not just a landmark
in the evolution of constitutional law, but a turning point in constitutional history.